1976 Supreme(SC) 476

SUPREME COURT OF INDIA
H.R. KHANNA AND V.R. KRISHNA IYER, JJ.
Bashir Ahmed Magrey, Appeallant
Versus
Ghulam Quadir Mir and others, Respondents.
Civil Appeal No. 317 (E) of 1976,
D/-2-12-1976.
Advocates appeared
Mr. M.N. Phadke, Sr. Advoacate, (M/s. Altaf Ahmed and M. Veeraappa, Advocates with him), for Appellant; Respondent No.1 Shri Ghulam Quadir Mir (In person); Respondents Nos. 2-5 Ex parte.

Headnote:

Jammu and Kashmir Representation of the People Act, 1957 - Sub-section (1) of Section 108 - Jammu and Kashmir Conduct of Election Rules, 1965 - Rule 56 (2) – Election conducted - Improper rejection of nomination paper - Improper reception or rejection of votes - Whether certain ballot papers were improperly received or were improperly rejected - Case of respondent as set up in election petition result of election was materially affected because of improper rejection at time of counting of votes which had been cast in his favor and by improper reception of votes in favor of appellant on day of polling - Giving particulars in respect of third ground namely that there was improper reception of votes in favor of appellant on day of polling respondent stated that total number of votes - All those votes were shown to have been polled although voters registered in that area did not cast their votes - Figure of included persons who were dead before date of polling - Electoral numbers of those voters including dead persons were also mentioned in petition - Votes of persons were thus stated to have been improperly received - Court may add at this stage that first ground namely that relating to improper rejection of nomination paper of respondent No.5 was not pressed at trail of election petition and as such no longer survives - Election petition was resisted by the appellant and he denied the various allegations made by the respondent. He also pleaded that the allegations in election petition were vague indefinite and uncertain - Objection was also raised regerarding maintainability of petition on grounds that it had not been properly verified and there was misjoinder of parties – Held, It has also been urged by respondent that number of votes which were improperly received was larger than that found by the High Court - Nothing cogent has however been brought to court notice in support of above submission to induce us to interfere with finding of High Court in this respect - Respondent submits that ballot papers of polling station cast in favor of appellant should be rejected as they bore initials and not full signatures of the presiding officer - Court attention in this respect is invited to clause (h) of Rule 56 (2) of Jammu and Kashmir Conduct of Election Rules, 1965 according to which returning officer at time of counting shall reject a ballot paper if it does not bear both mark and signatures which it should have borne under provisions of sub-rule (1) of Rule 38 - According to Sub-rule (1) of Rule 38 every ballot paper shall before issue to elector be stamped by such distinguishing mark as Election Commission may direct and be signed in full on its back by presiding officer - It is not disputed that ballot papers in question bore distinguishing mark - Only contention of respondent as already mentioned is that ballot papers in question bore initials and not full signatures of presiding officer - In this respect court find that no express ground on that score was set up by respondent in the election petition - This apart court find that matter is covered by first proviso to sub-rule (2) of Rule 56 - Provided that where returning officer is satisfied that any such defect as is mentioned in clause (g) or clause (h) has been caused by any mistake or failure on part of a presiding officer or polling officer ballot paper shall not be rejected merely on ground of such defect - Proviso which is based upon principle that a vote validly cast should not be excluded from consideration because of mistake or commission of presiding or polling officer makes it plain that where returning officer is satisfied that any defect mentioned in Cl. (h) has been caused by mistake or failure on part of a presiding officer or polling officer ballot paper shall not be rejected merely on ground of such defect - Fact that returning officer in present case did not reject ballot papers in question on ground that they bore only the initials and not the full signatures of the presiding officer would go to show that returning officer was satisfied that alleged defect was caused by mistake or failure on part of presiding officer - There can indeed be hardly any doubt on point that defect referred to by respondent occurred because of mistake or failure of presiding officer – Court therefore see no cogent ground to exclude from consideration ballot papers polled in favor of appellant - Court conclude court may observe that some other contentions were also advanced on behalf of appellant - In view of fact that appeal in any case has to be allowed because of arithmetical calculations referred to above it is not necessary to go into those contentions - Appeal allowed